PRABHAT LAL BARUAH Vs. KANAK CHANDRA BARUAH

JUDGEMENT

(1.) The judgment and decree dated 8-3-90 and 2-4-90 respectively passed by the learned Assistant District Judge, No. 2 (now re-designated as Civil Judge (Senior Division) No. 2), Guwahati in Title Appeal No. 10 of 1996 is under challenge in this Second Appeal. By the impugned judgment the appellate Court affirmed the judgment and decree dated 15-2-86 passed by the learned Munsiff, No. 2, Guwahati in title Suit No. 72 of 1986 by which the suit filed by the plaintiff-respondents for possession of the land and house thereon by rejecting the defendant-appellant was decreed in favour of the plaintiff-respondents.

(2.) The plaintiff/respondent, being the owner of the suit premises, allowed his cousin, the defendant-appellant to stay in the said suit premises free of rent with a condition of payment of Municipal Taxes, revenues and electricity charges etc. and delivery of vacant possession of the same on demand of the plaintiff. In this regard,two agreements were executed by both the parties - the first, the Exit. 1 on 24-4-75 and the other one, the Exbt. 2 on 29-5-77. But those documents were admittedly not registered. The defendant took over the possession of the suit premises. But the defendant defaulted in payment of Municipal Taxes etc. from 15-4-75 to 1979. Subsequently, the plaintiff required the house for his own use and occupation and accordingly, he made the demand for vacant possession of the house to the defendant who refused to comply with the same. Thereafter, the plaintiff sent a legal notice on 15-4-79 upon the defendant requesting him to deliver the vacant possession, but that too remain unheeded. This necessited the plaintiff to file the title suit No. 70 of 1979 praying for recovery of possession, mesne profit from 15-4-79 and also for other relief.

(3.) The above factual position as narrated in the plaint was rejected and denied by the defendant by filing written statement and claimed that the suit in question a joint family property and he is a co-sharer of the suit premises. Since the suit property has not been partitioned, present suit was not maintainable without partition. Further he alleged that the two above mentioned documents i.e. Exts. 1 and 2 are inadmissible in law and those were not binding upon him.